R.S.A. No. 1341 of 2009 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 1341 of 2009 (O&M)
Date of decision: 26.03.2009
Pritpal Singh
....Appellant
Versus
Inderjit Kaur and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr.Gaurav Mohunta, Advocate,
for the appellant.
*****
VINOD K. SHARMA, J (ORAL)
This regular second appeal is directed against the judgments
and decree dated 10.12.2007 and 2.12.2008 passed by the learned
Courts below vide which the suit filed by the plaintiff/appellant to
challenge the sale deed executed by his father in favour of other son
has been ordered to be dismissed.
The plaintiff challenged the sale deed primarily on the ground
that the property was coparcenary Joint Hindu Family property and,
therefore, his right could not be affected by way of sale deed executed
by Gurdeep Singh in favour of his son Harsimran Singh defendant No.
5. The suit was filed during the lifetime of Gurdeep Singh, who
contested the suit.
The learned Courts below have recorded a concurrent finding
of fact that the property was not ancestral in hands of Gurdeep Singh,
as the same was inherited by him from his father under the ‘Will’ and
not by way of inheritence, therefore, could not be said to be Joint Hindu
R.S.A. No. 1341 of 2009 (O&M)
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Family property to give locus to the plaintiff/appellant to challenge the
sale deed or the ‘Will’ executed by Gurdeep Singh in favour of
respondent No. 5.
Mr. Gaurav Mohunta, learned counsel appearing in behalf of
the appellant contends that this appeal raises the following substantial
questions of law: –
“1. Whether the character of the ancestral property could
be changed merely by way of execution of a ‘Will’?
2. Whether the learned Courts below were bound to
consider the convenants in the ‘Will’ to find out
intention of the executor of the ‘Will’ to form an opinion
whether the property was ancestral in the hands of
Gurdeep Singh or not?”
The learned counsel for the appellant contends that in this
case, the father of Gurdeep Singh executed a ‘Will’ in favour of all of his
sons, which they were otherwise entitled to inherit even if there was no
‘Will’ executed by him and, thus, character of the property could not
change.
The contention of the learned counsel for the appellant,
therefore, is that the learned Courts below committed an error in law in
treating it to be self-acquired property. In support of this contention, the
learned counsel for the appellant has placed reliance on the judgment
of the Hon’ble Supreme Court in Valliammai Achi Vs. Nagappa
Chettiar and another, AIR 1967 Supreme Court 1153.
However, on consideration of matter, I find no force in the
contention raised by the learned counsel for the appellant. It is not in
dispute that it was self-acquired property by father of Gurdeep Singh,
who ‘Willed’ it in favour of his son, therefore, the learned Courts below
were right in holding that as the property was inherited by Gurdeep
Singh under ‘Will’, it could not be said to be ancestral Joint Hindu
R.S.A. No. 1341 of 2009 (O&M)
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Family property giving right to the plaintiff/appellant in the suit property
to challenge the sale deed.
The learned counsel for the appellant also contends that it
was incumbent upon the Court to have considered the ingredients of
‘Will’ in order to form an opinion whether under the ‘Will’, the property
was bequeathed without any stipulation contained therein.
In support of this contention, the learned counsel for the
appellant placed reliance on the judgment of this Court in Ram
Parkash s/o Ch. Raghbir Singh Vs. Radhe Shyam and others, AIR
1963 Punjab 338, to contend that the Court is required to collect the
intention from the language of document taken along with surrounding
circumstances to give reasonable conclusion to ‘Will’. The plea raised
is that reading of ‘Will’ would show that it continued to be ancestral
property.
However, this contention is totally mis-conceived, as in the
‘Will’ the property was bequeathed to Gurdeep Singh absolutely without
any interference of any third party. The property was inherited by
Gurdeep Singh as an absolute owner thereof, and he had every right to
dispose it of the way he wishes to do so. No other interpretation is
possible from reading of the ‘Will’.
The substantial questions of law raised are answered against
the appellant.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
March 26, 2009
R.S.